Kennedy Counterclaim

8/8/2019 Kennedy Counterclaim

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IN THE SUPERIOR COURT OF COBB COUNTY

STATE OF GEORGIA

ZACH MINOR d/b/a JAMMIC, INC.

Plaintiff,

V. Civil Case No.09104391 - 34 - 34

KENNEDY INVESTMENTS, LLLP

Defendant,

V.

BETTY HARPER, HOWARD HARPER,

PEAK CONTRACTING, INC.,AAA RESTORATION COMPANY,

AND BUILDPROOF A/K/A RESTOREPROOF, LLC

Third Party Defendant(s)

__________________________________________/

AMENDED COUNTERCLAIMS OF DEFENDANT KENNEDY INVESTMENTS,

LLLP, AND AMENDED THIRD PARTY COMPLAINT

COMES NOW, Defendant and Counterclaim Plaintiff Kennedy Investments,

LLLP (Kennedy) and asserts and preserves the following Counterclaims against

Plaintiff, and Defendant, Kennedy Investments, LLLP has filed his Amended Third Party

Complaint against Betty Harper, Howard Harper, and Peak Contracting, Inc., AAA

Restoration Company., and Buildproof a/k/a Restoreproof, LLC.


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Nature of the Action

1.

Kennedy brings this action to recover damages for material breach of contract, for

indemnification under that contract, and for its attorneys fees and costs from Zach Minor

d/b/a JAMMIC, INC. (Minor).

2.

Minor materially breached its contract with Kennedy, among other things, failing

to pull and close permits, refusing to perform as agreed to on the contract under Scope of

Work, a no Show or walking off an agreed upon project, not completing a project or

cleaning up afterwards. Minor also exposed Kennedy to potential liability by failing to

properly pull, and close permits, and caused Kennedy to incur significant costs, including

attorneys fees, to investigate, address, and remedy Minors failure to perform the work it

had agreed to based upon the contract.

3.

Kennedy seeks to recover damages caused by Minors breached and seeks

indemnification for the losses it suffered as a result of Minors conduct. In addition,

Kennedy seeks to recover its reasonable expenses of litigation and attorneys fees

pursuant to its contract with Minor and O.C.G.A. 13-6-1.

The Parties

4.

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Kennedy Investments, LLLP is a Georgia Corporation with its principal place of

business at 2950 Robinson Forest Road, Powder Springs, GA 30127, in Cobb County,

Georgia.

5.

Zach Minor d/b/a JAMMIC, INC. upon information and belief maintains an

office at 840 Cog Hill, McDonough GA 30253. This court has personal jurisdiction

because the defendant resides in Cobb County, Georgia, and the JAMMIC, INC.

conducts business in Cobb County, Georgia.

Jurisdiction and Venue

6.

This Court has personal jurisdiction and venue over Kennedys Counterclaims

because Minor has voluntarily availed itself of this Court by filing a Complaint against

Kennedy, and because the following counterclaims are either compulsory or permissive.

Minor also consented to the jurisdiction and venue in this Court pursuant to its contract

with Kennedy.

Factual Background

7.

On or about July 1, 2008, Counterclaimant Kennedy Investments, LLLP entered

into an agreement with Betty Harper and Howard Harper to rebuild their home located at

250 Powell St, Atlanta, GA 30316; attached hereto as Exhibit B.

8.

Kennedy exclusively developed this project due to a natural disaster tornado,

which occurred on that property on or about March 14, 2008.

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9.

The claim report number was 0108704669 being made to All State Insurance by

owner Betty Harper, under policy # 931-030-453 and Popular Mortgage Servicing, Inc.

Loan #154875.

10.

On or about December 12, 2009 Minor entered into a binding agreement with

Kennedy acting as agent and contractor, hereof collectively as Exhibit A.

11.

In Exhibit A, under paragraph C.(1)(2)(6) Parties specifically agreed that that

Sub (a/k/a JAMMIC, INC. ) understands that he will be terminated from any project

with no compensation for the following breaches:

a. Paragraph C. (1) Refusing to perform as agreed to on the contract under

SCOPE OF WORK

b. Paragraph C. (2) NO SHOW or walking off an agreed upon project.

c. Paragraph C. (6) Not completing a project or cleaning up afterwards.

d. Further under paragraph D.(3) Parties specifically agreed that that Sub (aka

Third PartyDefendant JAMMIC, INC. ) understands that he will be

terminated from any project with no compensation and also be fined $250 per

day for the following breaches:

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e. Paragraph C. (1) Refusing to perform as agreed to on the contract under

SCOPE OF WORK

f. Paragraph C. (2) NO SHOW or walking off an agreed upon project.

g. Paragraph C. (6) Not completing a project or cleaning up afterwards.

12.

Minor has breached the above stated deficiencies for well over 180 days since

they stopped working on or about after March 17, 2009.

13.

The total fines due as a result of the breach caused by Minor exceed an amount

$135,000, which is due to Kennedy pursuant to the contract.

14.

On or about January 20, 2009, Betty Harper and Howard Harper received an

installment check upon belief and information an amount of twenty thousand dollars

($20,000.00) from their mortgage company made payable to Kennedy Investments,

L.L.L.P. and Betty Harper and Howard Harper, in order to make payments towards the

completion of this new construction project.

15.

On or about February 10, 2009, JAMMIC, INC. executed into an agreement with

Kennedy Investments LLLP.

16.

JAMMIC, INC acted as agent and contractor for Kennedy Investments LLLP.

The agreement spelled out the terms and consequences of a breach in contract along with

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related supporting documents, which isattached hereto and made a part hereof

collectively as Exhibit A.

17.

Both Plaintiff and Defendant were certified by the City of Atlanta Bureau of Permits, all

of which are attached hereto and made a part hereof collectively as Exhibit D.

18.

Kennedy Investments LLLP paid JAMMIC, INC. in the amount of $5,400.00 for

work the company performed on the foundation of said project. This money was not

remitted to the account of Third Party Defendant AAA RESTORATION COMPANY,

which the assignment was never made a part of this agreement nor, as so indicated by the

signed payroll sheet, attached hereto and made a part hereof as Exhibit E.

19.

On or about March 04, 2009 Betty Harper and Howard Harper received another

installment check of ($20,005.95) twenty thousand and five dollars and 95/100 cents

from their mortgage company made payable to the order of Kennedy Investments LLLP

and Betty Harper and Howard Harper, in order to make payments towards the completion

of this new construction project.

20.

From this check, Kennedy Investments LLLP paid JAMMIC, INC. the amount of

($20,005.95) twenty thousand and five dollars and 95/100 cents for work his company

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performed on the interior framing, roof framing, decking, roof shingles, HVAC/Furnace,

Rough Utilities, siding and windows of said project.

21.

These monies were not remitted to the account of AAA RESTORATION

COMPANY, which assignment was never made a part of this agreement, as so indicated

by the signed payroll sheet, attached hereto and made a part hereof as Exhibit E.

22.

Allstate Insurance escrowed funds necessary to build the house through Popular

Mortgage and Litton Loan Services, which made payments to Betty Harper and Howard

Harper totaling approximately $40,010.00 up through March 4, 2009.

23.

These funds were used to pay for labor and materials to build the subject property

through March 17, 2009.

24.

Kennedy Investments LLLP has paid subcontractors and suppliers towards the

completion of said project from his own personal funds, combined with funds provided

by Allstate Insurance Company under said claim, as so witnessed by Howard Harper in

an Affidavit and other related documents attached hereto and made a part hereof as

Exhibit G.

25.

On or about March 17, 2009 Allstate Insurance withdrew further funding of said

project until the project was completed.

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26.

JAMMIC, INC. ceased all work and withdrew their company permits; demanding

full payment for work they have not fully completed as described in the attached

inspection report by a state licensed home inspector (Jerry Pfeufer d/b/a Marietta

Inspections Services, LLC) as to the quality of work performed, attached hereto and

made a part hereof as Exhibit H.

27.

Kennedy Investments LLLP had a fiduciary responsibility and was under contract

to complete this project.

28.

Kennedy Investments LLLP used monies allotted to him to pay for completed

work only and move the project forward.

29.

The contract Minor signed with Kennedy Investments LLLP, specifically detailed

that the ability to pay was directly correlated to funds received from the insurance and

mortgage companies and Minors ability to perform as agreed.

30.

Minor still refused to perform without a proper legal excuse.

31.

Kennedy Investments LLLP continued to build the house using their own personal

funds and on or about April 10, 2009, had completed at least 80% of the scope of work.

32.

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Kennedy Investments LLLP submitted a request for Allstate Insurance to issue a partial

payment so that Kennedy Investments LLLP could pay for the labor & materials for work

already completed with his own funds.

33.

On or about July 22, 2009 Allstate Insurance sent a partial payment to Betty

Harper and Howard Harper, contemporaneously escrowed those funds with a company

called BUILDPROOF a/k/a RESTOREPROOF, LLC, to pay for completed work.

34.

The client entered into a user agreement with BUILDPROOF a/k/a

RESTOREPROOF, LLC, of which agreement specifically allows them to withhold funds

whenever there are noted deficiencies as to the quality of workmanship performed by

plaintiff in this matter.

35.

On September 4, 2009 an independent inspection was performed by a state licensed

home inspector (Jerry Pfeufer d/b/a Marietta Inspections Services, LLC) as to the quality

of your work performed by plaintiff, of which report is attached hereto and made a part

hereof as Exhibit H.

36.

Besides the deficiencies noted in his inspection, defendant has been forced to pay

another contractor to repair the following items that was supposed to be accomplished by

the plaintiff in this matters as follows:

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1. Replace 2x6 ceiling joist with 2x8 below HVAC

2. Properly install rafter ties

3. Finish window install

4. Finish siding install

5. Install 1x4 framing in bathroom wall to properly secure bathroom tub (1 gap left

between wall and bathroom tub)

37.

Third Party Plaintiff KENNEDY INVESTMENTS, LLLP advised plaintiff that he

was in full breach of a binding contract signed amongst the parties To complete this

project in full compliance with the Atlanta Land Development Code as amended, the

Cabbagetown Landmark District regulations and the Atlanta Urban Design Commission

Staff Report, dated October 8, 2008 and November 12, 2008 and the architectural design

and site plans.

38.

Plaintiff has refused to perform the above scope of work and cure the deficiencies

noted by a state licensed home inspector (namely Jerry Pfeufer d/b/a Marietta Inspections

Services, LLC) as to the quality of work, without sufficient legal excuse.

39.

Contemporaneously on or about September 5, 2009 Third Party plaintiff mailed

Third Party Defendant a deficiency notice by certified mail that specifically addressed

such deficiencies with a sixty (60) day right to cure, less the client back-charge plaintiff

and take all legal measures necessary to recover monies owed.

40.

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On or about September 15, 2009 Third Party Plaintiff Kennedy conducted an

inspection with Allstate Insurance agent, Brian Pavlick and Third Party Defendant(s)

ZACH MINOR d/b/a JAMMIC, INC. , and Michael Mccune (Owner of Jammic, Inc.) to

address the deficiencies noted by the state inspector and the homeowners. The Third

Party Defendants still refused to address these deficiencies at that time.

41.

In accordance with the contract signed by both Parties, under paragraph C, marked

COMPENSATION, there was to be a (10%) ten percent holdback each billing cycle

until final payment was received from homeowner and client Betty Harper.

42.

As of this amended filing the amount totals ($3,805.00) three thousand eight

hundred and five dollars, of which amount should be offset by any claim alleged by

Plaintiff.

43.

Furthermore, under paragraph marked DISCLAIMER the parties agreed that Third

Party Plaintiff KENNEDY INVESTMENTS, LLLP has made NO WARRANTIES

regarding any present and / or future outcomes that may be achieved as a result of any

and all strategies, assumptions, facts, figures and projections as to its ability to

successfully develop its products and services.

44.

The projections reflected are only relative to the HOMEOWNERS FULL

UNINTERRUPTED COMPLIANCE [If the court will please refer to the CHANGE OF

SCHEDULE LOG, attached hereto, and made a part hereof as Exhibit J.

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45.

Exhibit J demonstrates Betty Harper and Howard Harper have been

NONCOMPLIANT AND DISTRACTING ALL THROUGHOUT THIS PROJECT ].,

and is also relative TO THE DISPERSEMENT OF FUNDS FROM POPULAR

MORTGAGE,..and does not bind Third Party Plaintiff KENNEDY INVESTMENTS,

LLLP for any damages whatsoever, whether direct, consequential, incidental, special,

material change in the economy or claim for attorney fees.

46.

As of July 22, 2009, Betty Harper and Howard Harper have secured the last draws from

Allstate in the amount of ($29,665.00) Twenty Nine Thousand Six Hundred & Sixty Five

Dollars---00/100 and escrowed this fund to a company called BUILDPROOF aka

RESTOREPROOF LLC.

47.

On or about September 9, 2009, Betty Harper and Howard Harper have also

received an additional ($20,181.17) Twenty Thousand One Hundred & Eighty One

Dollars---17/100 to close out this project.

48.

On or about October 5, 2009, Betty Harper and Howard Harper have not released

those funds to Third Party Plaintiff KENNEDY INVESTMENTS, LLLP to finish

building their home.

49.

Betty Harper and Howard Harper are on the belief that they have the right to

transfer such funds already earned by Defendant to the Plaintiff without assignment;

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50.

Bryan Pavlick has defended this position and interfered with Third Party Plaintiff

KENNEDY INVESTMENTS, LLLP right to funds owed to defendant under the contract

by arguing on behalf of the homeowners in discussion with escrow agent Brian Hayes,

and advocating that defendants earned money should be transferred to the same plaintiff

contractors that have been deficient in properly building the home in the first place.

51.

As of this Amended Complaint, KENNEDY INVESTMENTS, LLLP has

performed all the terms and conditions of said agreement that is required, and Third

Party Defendant JAMMIC, INC. has refused to comply to the terms of the agreement.

52.

This original complaint was filedpro se, and subsequently the Complaint has

been amended by counsel. In the original complaint, Exhibits C, F, and I were omitted,

and keeping with the original, Counsel has also omitted these exhibits, so there is no error

in these Exhibits missing from the complaint.

COUNT I BREACH OF CONTRACT

53.

Kennedy realleges and incorporates by reference as if specifically restated herein

paragraphs 1-52 of its Counterclaims as if fully restated herein.

54.

ZACH MINOR d/b/a JAMMIC, INC. entered into a valid and enforceable

contract with Kennedy.

55.

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ZACH MINOR d/b/a JAMMIC, INC materially breached the contract with

Kennedy, by among other things, failing to properly pull and close permits, failing to

adhere to local building codes, and complete work that was contracted to be completed.

56.

As a direct and proximate result of these material breaches, Kennedy has incurred

substantial damages, the amount of which shall be proven at trial.

COUNT II - INDEMNIFICATION

57.



58.

Pursuant to its contract, Minor agreed to indemnify Kennedy for any and all loses,

damages, costs, or liabilities incurred as a result of Minors acts and omissions in its

performance of the said agreement.

59.

Kennedy has suffered, and continues to suffer, losses and damages, and has

incurred liabilities and costs for which Minor has contracted to indemnify Kennedy.

60.

The costs and expenses Kennedy has paid to address the liabilities, losses,

damages, and costs incurred as a result of Minors acts and omissions are reasonable in

relation to those liabilities, losses, damages, and costs.

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61.

Kennedy is therefore entitled to indemnification from Minor in an amount shall be

proven at trial.

COUNT III-QUANTUM MERUIT

62.



63.

Counter-claimant, Kennedy is equitably entitled to monies from Plaintiff, Minor.

64.

Plaintiff, Minor received monies from Betty Harper and Howard Harper, but

failed to complete the work as specified per the contract

65.

Plaintiff, Minor deprived Counter-claimant, Kennedy of such use of said monies.

66.

Counter-claimant, Kennedy is entitled to monies already paid to Minor, or have

the work completed pursuant to the contract

THEREFORE, pursuant to the doctrine of quantum meruit, Counter-claimant,

Kennedy is entitled to an award of damage in its favor against Plaintiff, Minor in an

amount to be proven at trial.

COUNT IV- UNJUST ENRICHMENT

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67.



.

68.

Counter-claimant, Kennedy with the explicit understanding, entered into a legally

binding contract with Plaintiff, Minor.

69.

Plaintiff, Minor was cognizant that the contract was binding, and that the work

was to be performed per the Georgia building code.

70.

. Plaintiff, Minor was unjustly enriched by not performing the work, but

receiving remuneration as set forth by the contract.

71.

Plaintiff, Minor has reaped the benefits of the monies, but Defendant, Kennedy

has not enjoyed the fruits of his labor.

72.

Therefore, Defendant, Kennedy is entitled to a judgment in his favor and an

award of damages for unjust enrichment against Plaintiff, Minor, in an amount to be

determined at trial.

COUNT V ATTORNEYS FEES

73.



74.

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Minor has acted in bad faith, has been stubbornly litigious, and has caused

Kennedy unnecessary trouble and expenses by, inter alia, acting in bad faith by

participating in the illegal conduct described herein.

75.

Accordingly, Kennedy is entitled to recover its attorneys fees and other

reasonable expenses incurred in connection with this litigation, pursuant to O.C.G.A.

13-6-11.

76.

Kennedy is entitled to prejudgment interest at the applicable legal rate per annum.

PRAYER FOR RELIEF

WHEREFORE, Kennedy respectfully prays for judgment as follows:

1. that judgment be entered in favor of Kennedy against Minor on all claims for

relief;

2. that Minor take nothing by its Complaint;

3. that judgment be entered in favor of Kennedy on all of its Counterclaims

against Minor;

4. that Kennedy be awarded its attorneys fees and costs of suit incurred herein;

and

5. that Kennedy be awarded such other and further relief as it deems just and

proper.

This 10th day of June, 2010

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Respectfully submitted:

______________________________Curt B.ThompsonAttorney for PetitionerGSBN: 707663

6320 Glenbrook DriveTucker, Georgia 30084(404) 643-2649 telephone(404) 463-1388 [email protected]

AMENDED THIRD PARTY COMPLAINT

77.

COMES NOW, Plaintiff Kennedy Investments, LLLP (Kennedy) complains of

third-party Defendant, BUILDPROOF A/K/A RESTOREPROOF, LLC (hereinafter

BUILDPROOF), Betty Harper, Howard Harper, Peak Contracting, INC., and AAA

Restoration Company and states as follows:

Nature of the Action

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78.

Kennedy brings this petition to force Buildproof A/K/A RESTOREPROOF, LLC

to interplead the escrow funds of this said Complaint with the Court registry, as well as

recover funds that were paid improperly to AAA Restoration Company, and Peak

Contracting, Inc. Furthermore to recover monies from Betty and Howard Harper that was

never paid to Plaintiff pursuant to the contract.

The Parties

79.

Kennedy Investments, LLLP is a Georgia Corporation with its principal place of

business at 2950 Robinson Forest Road, Powder Springs, GA 30127, in Cobb County,

Georgia.

80.

BUILDPROOF A/K/A RESTOREPROOF, LLC is an Arizona corporation, with

its principal place of business at 5635 North Scottsale Road, Suite 140, Scottsdale,

Arizona 85250. Upon a check with the Georgia Secretary of State, this corporation is not

authorized nor registered to do business in the State of Georgia.

81.

This court has personal jurisdiction over BUILDPROOF A/K/A

RESTOREPROOF, LLC because the defendant elected to do business in Cobb County,

Georgia, even though it lacks the proper registration.

82.

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Upon belief and information, Defendants Betty and Howard Harper are currently

residing at 250 Powell St, Atlanta, GA 30316, which is in Fulton County, Georgia.

83.

Peak Contracting, Inc. is a Georgia corporation that maintains an office at. 2815

Anodover Way, Woodstock GA 30189, which is located in Cherokee County, Georgia.

84.

AAA Restoration Company is a Georgia corporation that maintains an office at.

164 Andrews Drive, Suite 200, Stockbridge, GA 30281, which is located in Henry

County, Georgia.

Jurisdiction and Venue

85.

This Court has personal jurisdiction and venue over Kennedys Counterclaims

because Minor has voluntarily availed itself of this Court by filing a Complaint against

Kennedy, and because the following counterclaims are either compulsory or permissive.

Minor also consented to the jurisdiction and venue in this Court pursuant to its contract

with Kennedy.

FACTUAL BACKGROUND

86.

On or about July 1, 2008, Counterclaimant Kennedy Investments, LLLP

entered into an agreement with Betty Harper and Howard Harper to rebuild their home

located at 250 Powell St, Atlanta, GA 30316; attached hereto as Exhibit B.

87.

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Kennedy exclusively developed this project due to a natural disaster tornado,

which occurred on that property on or about March 14, 2008.

88.

The claim report number was 0108704669 being made to All State Insurance by

owner Betty Harper, under policy # 931-030-453 and Popular Mortgage Servicing, Inc.

Loan #154875.

89.

On or about December 12, 2009 Minor entered into a binding agreement with

Kennedy acting as agent and contractor, hereof collectively as Exhibit A.

90.

In Exhibit A, under paragraph C.(1)(2)(6) Parties specifically agreed that that

Sub (a/k/a JAMMIC, INC. ) understands that he will be terminated from any project

with no compensation for the following breaches:

h. Paragraph C. (1) Refusing to perform as agreed to on the contract under

SCOPE OF WORK

i. Paragraph C. (2) NO SHOW or walking off an agreed upon project.

j. Paragraph C. (6) Not completing a project or cleaning up afterwards.

k. Further under paragraph D.(3) Parties specifically agreed that that Sub (aka

Third PartyDefendant JAMMIC, INC. ) understands that he will be

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terminated from any project with no compensation and also be fined $250 per

day for the following breaches:

l. Paragraph C. (1) Refusing to perform as agreed to on the contract under

SCOPE OF WORK

m. Paragraph C. (2) NO SHOW or walking off an agreed upon project.

n. Paragraph C. (6) Not completing a project or cleaning up afterwards.

91.

Minor has breached the above stated deficiencies for well over 180 days since

they stopped working on or about after March 17, 2009.

92.

The total fines due as a result of the breach caused by Minor exceed an amount

$135,000, which is due to Kennedy pursuant to the contract.

93.

On or about January 20, 2009, Betty Harper and Howard Harper received an

installment check upon belief and information an amount of twenty thousand dollars

($20,000.00) from their mortgage company made payable to Kennedy Investments,

L.L.L.P. and Betty Harper and Howard Harper, in order to make payments towards the

completion of this new construction project.

94.

On or about February 10, 2009, JAMMIC, INC. executed into an agreement with

Kennedy Investments LLLP.

95.

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JAMMIC, INC acted as agent and contractor for Kennedy Investments LLLP.

The agreement spelled out the terms and consequences of a breach in contract along with

related supporting documents, which isattached hereto and made a part hereof

collectively as Exhibit A.

96.

Both Plaintiff and Defendant were certified by the City of Atlanta Bureau of Permits, all

of which are attached hereto and made a part hereof collectively as Exhibit D.

97.

Kennedy Investments LLLP paid JAMMIC, INC. the amount of $5,400.00 for

work the company performed on the foundation on said project. This money was not

remitted to the account of Third Party Defendant AAA RESTORATION COMPANY,

which assignment was never made a part of this agreement nor, as so indicated by the

signed payroll sheet, attached hereto and made a part hereof as Exhibit E.

98.

On or about March 04, 2009 Betty Harper and Howard Harper received another

installment check of ($20,005.95) twenty thousand and five dollars and 95/100 cents

from their mortgage company made payable to the order of Kennedy Investments LLLP

and Betty Harper and Howard Harper, in order to make payments towards the completion

of this new construction project.

99.

From this check, Kennedy Investments LLLP paid JAMMIC, INC. the amount of

($20,005.95) twenty thousand and five dollars and 95/100 cents for work his company

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performed on the interior framing, roof framing, decking, roof shingles, HVAC/Furnace,

Rough Utilities, siding and windows of said project.

100.

These monies were not remitted to the account of AAA RESTORATION

COMPANY, which assignment was never made a part of this agreement, as so indicated

by the signed payroll sheet, attached hereto and made a part hereof as Exhibit E.

101

Allstate Insurance escrowed funds necessary to build the house through Popular

Mortgage and Litton Loan Services, which made payments to Betty Harper and Howard

Harper totaling approximately $40,010.00 up through March 4, 2009.

102

These funds were used to pay for labor and materials to build the subject property

through March 17, 2009.

103

Kennedy Investments LLLP has paid subcontractors and suppliers towards the

completion of said project from his own personal funds, combined with funds provided

by Allstate Insurance Company under said claim, as so witnessed by Howard Harper in

an Affidavit and other related documents attached hereto and made a part hereof as

Exhibit G.

104

On or about March 17, 2009 Allstate Insurance withdrew further funding of said

project until the project was completed.

105

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JAMMIC, INC. ceased all work and withdrew their company permits; demanding

full payment for work they have not fully completed as described in the attached

inspection report by a state licensed home inspector (Jerry Pfeufer d/b/a Marietta

Inspections Services, LLC) as to the quality of work performed, attached hereto and

made a part hereof as Exhibit H.

106

Kennedy Investments LLLP had a fiduciary responsibility and was under contract

to complete this project.

107

Kennedy Investments LLLP used monies allotted to him to pay for completed

work only and move the project forward.

108

The contract Minor signed with Kennedy Investments LLLP, specifically detailed

that the ability to pay was directly correlated to funds received from the insurance and

mortgage companies and Minors ability to perform as agreed.

109

Minor still refused to perform without a proper legal excuse.

110

Kennedy Investments LLLP continued to build the house using their own personal

funds and on or about April 10, 2009, had completed at least 80% of the scope of work.

111

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Kennedy Investments LLLP submitted a request for Allstate Insurance to issue a partial

payment so that Kennedy Investments LLLP could pay for the labor & materials for work

already completed with his own funds.

112

On or about July 22, 2009 Allstate Insurance sent a partial payment to Betty

Harper and Howard Harper, contemporaneously escrowed those funds with a company

called BUILDPROOF a/k/a RESTOREPROOF, LLC, to pay for completed work.

113.

The client entered into a user agreement with BUILDPROOF a/k/a

RESTOREPROOF, LLC, of which agreement specifically allows them to withhold funds

whenever there are noted deficiencies as to the quality of workmanship performed by

plaintiff in this matter.

114.

On September 4, 2009 an independent inspection was performed by a state licensed

home inspector (Jerry Pfeufer d/b/a Marietta Inspections Services, LLC) as to the quality

of your work performed by plaintiff, of which report is attached hereto and made a part

hereof as Exhibit H.

115.

Besides the deficiencies noted in his inspection, defendant has been forced to pay

another contractor to repair the following items that was supposed to be accomplished by

the plaintiff in this matters as follows:

6. Replace 2x6 ceiling joist with 2x8 below HVAC

7. Properly install rafter ties

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8. Finish window install

9. Finish siding install

10. Install 1x4 framing in bathroom wall to properly secure bathroom tub (1 gap left

between wall and bathroom tub)

116.

Third Party Plaintiff KENNEDY INVESTMENTS, LLLP advised plaintiff that he

was in full breach of a binding contract signed amongst the parties To complete this

project in full compliance with the Atlanta Land Development Code as amended, the

Cabbagetown Landmark District regulations and the Atlanta Urban Design Commission

Staff Report, dated October 8, 2008 and November 12, 2008 and the architectural design

and site plans.

117

Plaintiff has refused to perform the above scope of work and cure the deficiencies

noted by a state licensed home inspector (namely Jerry Pfeufer d/b/a Marietta Inspections

Services, LLC) as to the quality of work, without sufficient legal excuse.

118

Contemporaneously on or about September 5, 2009 Third Party plaintiff mailed

Third Party Defendant a deficiency notice by certified mail that specifically addressed

such deficiencies with a sixty (60) day right to cure, less the client back-charge plaintiff

and take all legal measures necessary to recover monies owed.

119

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On or about September 15, 2009 Third Party Plaintiff Kennedy conducted an

inspection with Allstate Insurance agent, Brian Pavlick and Third Party Defendant(s)

ZACH MINOR d/b/a JAMMIC, INC. , and Michael Mccune (Owner of Jammic, Inc.) to

address the deficiencies noted by the state inspector and the homeowners. The Third

Party Defendants still refused to address these deficiencies at that time.

120

In accordance with the contract signed by both Parties, under paragraph C, marked

COMPENSATION, there was to be a (10%) ten percent holdback each billing cycle

until final payment was received from homeowner and client Betty Harper.

121

As of this amended filing the amount totals ($3,805.00) three thousand eight

hundred and five dollars, of which amount should be offset by any claim alleged by

Plaintiff.

122

Furthermore, under paragraph marked DISCLAIMER the parties agreed that Third

Party Plaintiff KENNEDY INVESTMENTS, LLLP has made NO WARRANTIES

regarding any present and / or future outcomes that may be achieved as a result of any

and all strategies, assumptions, facts, figures and projections as to its ability to

successfully develop its products and services.

123

The projections reflected are only relative to the HOMEOWNERS FULL

UNINTERRUPTED COMPLIANCE [If the court will please refer to the CHANGE OF

SCHEDULE LOG, attached hereto, and made a part hereof as Exhibit J.

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124

Exhibit J demonstrates Betty Harper and Howard Harper have been

NONCOMPLIANT AND DISTRACTING ALL THROUGHOUT THIS PROJECT ].,

and is also relative TO THE DISPERSEMENT OF FUNDS FROM POPULAR

MORTGAGE,..and does not bind Third Party Plaintiff KENNEDY INVESTMENTS,

LLLP for any damages whatsoever, whether direct, consequential, incidental, special,

material change in the economy or claim for attorney fees.

125

As of July 22, 2009, Betty Harper and Howard Harper have secured the last draws from

Allstate in the amount of ($29,665.00) Twenty Nine Thousand Six Hundred & Sixty Five

Dollars---00/100 and escrowed this fund to a company called BUILDPROOF aka

RESTOREPROOF LLC.

126

On or about September 9, 2009, Betty Harper and Howard Harper have also

received an additional ($20,181.17) Twenty Thousand One Hundred & Eighty One

Dollars---17/100 to close out this project.

127

On or about October 5, 2009, Betty Harper and Howard Harper have not released

those funds to Third Party Plaintiff KENNEDY INVESTMENTS, LLLP to finish

building their home.

128

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Betty Harper and Howard Harper are on the belief that they have the right to

transfer such funds already earned by Defendant to the Plaintiff without assignment;

129

Bryan Pavlick has defended this position and interfered with Third Party Plaintiff

KENNEDY INVESTMENTS, LLLP right to funds owed to defendant under the contract

by arguing on behalf of the homeowners in discussion with escrow agent Brian Hayes,

and advocating that defendants earned money should be transferred to the same plaintiff

contractors that have been deficient in properly building the home in the first place.

130

Third Party Plaintiff KENNEDY INVESTMENTS, LLLP believes that the

subject property has been unusually corrupted by numerous delays and interference

beyond his control as a result of Betty Harper and Howard Harper.

131

The project was developed initially with Third Party Defendant Jeff Buffington

and Peak Contracting.

132

Third Party Defendant Peak Contracting has not performed after being given an

initial draw of $30,008.94 from Popular Mortgage, as evidenced by the attached letter

from Allstate Insurance.

133

This event is unfortunate and has nothing to do with the performance and

obligations of contractor and Third Party Plaintiff KENNEDY INVESTMENTS, LLLP

under the agreement and is completely beyond his control.

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134

Third Party Plaintiff KENNEDY INVESTMENTS, LLLP attempted to assume

the role of agent and contractor using his own funds, when there was no legal obligation

to do so.

135

This further outlay of personal funds should add further proof that he had nothing

to do with Third Party Defendant Peak Contracting mishandling of funds,

COUNT I-INTERPLEADER

136

Kennedy is the both the Defendant and Counterclaimant regarding the remaining

funds currently being held by BUILDPROOF A/K/A RESTOREPROOF, LLC. Plaintiff

believes he is entitled to said funds, but wishes for the Court to make a judicial

determination at a future date.

137

The monies in dispute belong with this Honorable Court rather than an entity that

is not even authorized to conduct said business in the State of Georgia.

138

Pursuant to O.C.G.A. 23-3-01, Kennedy has in no way colluded with party to

this above styled action concerning the matters of this cause. Defendant, Counter-

claimant, and Plaintiff, Kennedy has not, and will not be indemnified in any manner by

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any party. Kennedy has filed this petition in interpleader of its own free will to avoid

multiple liability and unnecessary suits and incidental costs to him.

139

Kennedy has not unreasonably delayed in filing this action for interpleader.

140

As of this filing, Kennedy has not received an accounting of the remaining monies

purported to be held by BUILDPROOF A/K/A RESTOREPROOF, LLC.

WHEREFORE, Kennedy Investments requests that Defendant, BUILDPROOF

A/K/A RESTOREPROOF, LLC be cited to appear and answer herein, this Honorable

Court authorize BUILDPROOF A/K/A RESTOREPROOF, LLC to tender into the

Courts registry any monies being held related to this Complaint.

COUNT II BREACH OF CONTRACT

141


paragraphs 75-135 of its Amended Third Party Complaint as if fully restated herein.

142

Betty Harper and Howard Harper entered into a valid and enforceable contract

with Kennedy.

143

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Betty Harper and Howard Harper materially breached the contract with Kennedy,

by failure to remit funds for worked performed, and block any further collection efforts to

receive those funds.

144

As a direct and proximate result of these material breaches, Kennedy has incurred

substantial damages, the amount of which shall be proven at trial.

COUNT III - INDEMNIFICATION

145



146

Pursuant to its contract, Betty Harper and Howard Harper agreed to indemnify

Kennedy for any and all loses, damages, costs, or liabilities incurred as a result of

Harpers acts and omissions in its performance of the said agreement.

147

Kennedy has suffered, and continues to suffer, losses and damages, and has

incurred liabilities and costs for which Betty Harper and Howard Harper has contracted

to indemnify Kennedy.

148

The costs and expenses Kennedy has paid to address the liabilities, losses,

damages, and costs incurred as a result of Betty Harper and Howard Harpers acts and

omissions are reasonable in relation to those liabilities, losses, damages, and costs.

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149

Kennedy is therefore entitled to indemnification from Betty Harper and Howard

Harper in an amount shall be proven at trial.

COUNT IV-QUANTUM MERUIT

150



151

Kennedy is equitably entitled to monies from Betty Harper, Howard Harper, Peak

Contracting, INC., and AAA Restoration Company

152

Peak Contracting, INC., and AAA Restoration Company received monies from

Betty Harper and Howard Harper, but failed to complete the work as specified per the

contract

153

Betty Harper, Howard Harper, Peak Contracting, INC., and AAA Restoration

Company deprived Kennedy of such use of said monies.

154

Kennedy is entitled to monies already paid to Peak Contracting, INC., and AAA

Restoration Company, or have the work completed pursuant to the contract.

THEREFORE, pursuant to the doctrine of quantum meruit, Kennedy is entitled

to an award of damage in its favor against Betty Harper, Howard Harper, Peak

Contracting, INC., and AAA Restoration Company in an amount to be proven at trial.

COUNT V- UNJUST ENRICHMENT

155

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.

156

Kennedy with the explicit understanding, entered into a legally binding contract

with Betty Harper, and Howard Harper

157

Betty Harper and Howard Harper were cognizant that the contract was binding,

and that the work was to be performed, and paid accordingly per the Georgia building

code.

158

. Betty Harper and Howard Harper were unjustly enriched by not paying for

the work already completed.

159

Betty Harper and Howard Harper have reaped the benefits of the labor and

supplies, but have not paid for accordingly pursuant to the contract.

160

Therefore, Kennedy is entitled to a judgment in his favor and an award of

damages for unjust enrichment against Betty Harper, and Howard Harper, in an amount

to be determined at trial.

COUNT V ATTORNEYS FEES

161

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162

Betty Harper, and Howard Harper has acted in bad faith, has been stubbornly

litigious, and has caused Kennedy unnecessary trouble and expenses by, inter alia, acting

in bad faith by participating in the illegal conduct described herein.

163

Accordingly, Kennedy is entitled to recover its attorneys fees and other

reasonable expenses incurred in connection with this litigation, pursuant to O.C.G.A.

13-6-11.

164

Kennedy is entitled to prejudgment interest at the applicable legal rate per annum.

PRAYER FOR RELIEF

WHEREFORE, Kennedy respectfully prays for judgment as follows:

1. that judgment be entered in favor of Kennedy against Betty Harper, and

Howard Harper on all claims for relief;

2. that Betty Harper, and Howard Harper take nothing by its Complaint;

3. that judgment be entered in favor of Kennedy on all of its claims against Betty

Harper, and Howard Harper;

4. that Kennedy be awarded its attorneys fees and costs of suit incurred herein;

and

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5. that Kennedy be awarded such other and further relief as it deems just and

proper.

This 27

th

day of June, 2010

Respectfully submitted:

______________________________Curt B.ThompsonAttorney for PetitionerGSBN: 707663

6320 Glenbrook DriveTucker, Georgia 30084(404) 643-2649 telephone(404) 463-1388 [email protected]

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mailto:[email protected]:[email protected]


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Documents

Kennedy Counterclaim